1

ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

ORDER

AND NOW, this day of , 2002, it is hereby

ORDERED and DECREED that the Defendant’s Motion to Partially Dismiss is

denied.

BY THE COURT:

___________________________

 J.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 1 of 14
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ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

PLAINTIFF’S ANSWER TO DEFENDANT’S PARTIAL

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

1.(a)-f Admitted in part; denied in part. Plaintiff’s complaint speaks for

itself. Plaintiff has made various allegations, and has pursued various claims

under both Federal and State Law.

2.(a)-c Denied. Plaintiff has alleged a factual basis for each and every

claim that has been made against the defendant.

3. In defense of his complaint, plaintiff submits herewith a

Memorandum of Law in support of his answer to defendant’s Motion to

Partially Dismiss.

WHEREFORE, plaintiff respectfully requests that this Honorable Court

deny Defendant’s Motion to Dismiss.

Respectfully submitted by,

ARMANDO A. PANDOLA, JR., ESQUIRE

Attorney for Plaintiff

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 2 of 14
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ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

MEMORANDUM OF LAW

I. Statement of Facts

Jerold Washington was hired by the defendant on May 10, 1999 as a

Trackman, and he currently holds that same position. His duties are to

construct, maintain, repair, inspect and dismantle track and attach structures

thereto, including right of way maintenance. On or about November 30, 2000,

a co-worker, James Hogan, made inappropriate racial remarks to Mr.

Washington, making reference to a confederate flag that was located in the

back window of a truck used in the exterminating business. On that same

day, the same co-employee used tape to tie up Mr. Washington to the driver’s

seat of the truck. The co-employee was holding a noose in his hand and he

asked Mr. Washington if he knew what it was for.

These racial remarks were part of a general hostile work environment

at the Lancaster Division of the defendant.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 3 of 14
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Because of this hostile work environment, Mr. Washington has been

unable to work in the Lancaster Division, and he has lost employment

because of his inability to work at that location. On a regular basis, jobs are

given to non-blacks who are less qualified than Mr. Washington and others of

his race.

I. MOTION TO DISMISS STANDARD

A district court should not dismiss a complaint under Rule 12(b)(6)

for failure to state a claim for relief "unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claims which would

entitle him to relief." Conley v. Gibson, 335 U.S. 41, 45-46 (1957). In

evaluating whether dismissal is proper, a court must accept all the "factual

allegations of the complaint . . . as true," and must draw all "reasonable

inferences . . . to aid the pleader." D.P. Enter. v. Bucks County Community

College, 725 F.2d 943, 944 (3d Cir. 1984).

The court may only consider the pleading that is attached by an

FRCP 12(b)(6) motion in determining its sufficiency. The court is not

permitted to look at matters outside the record.

III. Plaintiff’s Claims for Violation of 42 U.S.C. Section 1983

and the Fifth Amendment 

Plaintiff voluntarily withdraws his claims under 42 U.S.C. Section 1983

and the Fifth Amendment.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 4 of 14
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IV. BREACH OF CONTRACT CLAIMS

In Count III of plaintiff’s complaint, Mr. Washington alleges various

violations of the contract that existed between the plaintiff and the defendant.

This contract was part of the general labor contract signed by the defendant

with plaintiff’s union.

In Count IV of plaintiff’s complaint, Mr. Washington alleges that he is a

member a Protected Class, African Americans, and that he was denied a job

for which he was qualified and for which he applied at the Lancaster Division

because of his race. Mr. Washington alleges that the defendant maintains an

employment policy, practice or selection criteria which is facially neutral, but

which has a disparate impact on African-Americans.

Essentially, the facts to support this claim are that the Lancaster

Division, and other Divisions within the defendant require that a person live

at or near the Division in which they are employed and that each Division

may maintain its own criteria for each job and its own hiring practices. As a

result, it has become impossible for members of minority classes, such as

Mr. Washington, to obtain employment outside of the large Urban areas in

which most minorities live.

Defendant argues that both claims are subject to dismissal because

they are preempted by the Railway Labor Act, 45 U.S.C. Section 151-188

(“RLA”).

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 5 of 14
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Defendant attempts to bundle together plaintiff’s claims in both Counts

III and IV. In fact, they are two very distinct claims. While Count III alleges

contractual breaches on the part of the defendant, Count IV does not. Count

IV is based on a claim under Title VII, and not part of any contract between

Mr. Washington’s Union and the defendant.

Paragraph 50 of Count IV incorporates all of the other paragraphs set

forth in the complaint into that Count for unlawful practices and policies,

including the allegations under Title VII. Therefore, defendant’s argument

that contractual claims are preempted by the RLA does not apply to Count IV.

Count IV is not a claim based in contract but, rather, a claim based upon Title

VII for the disparate impact of defendant’s facially neutral polices upon

African-Americans such as Mr. Washington. Defendant has failed to cite any

authority for the claim that the RLA preempts claims under Title VII and, in

fact, in its Motion to Dismiss, defendant admits that for purposes of this

Motion, it accepts “the sufficiency of plaintiff’s claims under Title VII or the

PHRA.” See page 2 of defendant’s Memorandum of Law. Therefore, there is

no dispute that Count IV should not be dismissed since it states a claim

under Title VII.

The remaining issue concerning Count III depends on an interpretation

of the RLA.

Defendant cites several cases in which our Courts have held that

“minor disputes” concerning collective bargaining agreements between the

Railroad and its employees union are preempted by RLA.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 6 of 14
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In Brown v. Illinois Central Railroad Co., 254 F.3d 654, (7th Cir.

06/20/2001), the Court summarized the law concerning when the RLA

preempts certain claims:

The RLA promotes stability in labor-management

relations by "providing a comprehensive framework for

resolving labor disputes" in the railroad industry.

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252

(1994) (citing Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 562 (1987)); see also 45 U.S.C. sec.

151a. Specifically, the RLA establishes a mandatory

arbitral mechanism for "the prompt and orderly

settlement" of two classes of disputes--"major disputes"

and "minor disputes." See 45 U.S.C. sec. 151a. Major

disputes "relate to the formation of collective bargaining

agreements or efforts to secure them." Hawaiian Airlines,

512 U.S. at 252 (citation and internal quotation omitted).

Minor disputes, by contrast, "gro[w] out of grievances or

out of the interpretation or application of agreements

covering rates of pay, rules, or working conditions[,]" 45

U.S.C. sec. 151a, and "involve controversies over the

meaning of an existing collective bargaining agreement in

a particular fact situation." Hawaiian Airlines, 512 U.S. at

253 (citation omitted). All minor disputes "must be

adjudicated under RLA mechanisms, which include an

employer's internal dispute-resolution procedures and an

adjustment board established by the unions and the

employer." Monroe, 115 F.3d at 516; 45 U.S.C. sec. 184. A

plaintiff's claim is properly characterized as a minor

dispute (and is therefore subject to mandatory and

exclusive arbitration under the RLA) when the

resolution of the plaintiff's claim requires interpretation of

the CBA. See Monroe, 115 F.3d at 519; Coker v. Trans

World Airlines, Inc., 165 F.3d 579, 583 (7th Cir. 1999)

(stating that "[t]he distinguishing feature of a minor

dispute is that the dispute can be conclusively resolved

by interpreting the existing CBA." (citation and internal

quotation omitted)). Therefore, even if Brown's claim is

grounded upon rights which stem from some source

other than the CBA (such as state law), the claim

will be preempted if it cannot be adjudicated without

interpreting the CBA, or if it can be "conclusively

resolved" by interpreting the CBA. See Hawaiian Airlines,

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 7 of 14
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512 U.S. at 261-62; Consolidated Rail Corp v. Ry. Labor

Executives' Ass'n, 491 U.S. 299, 305 (1989).

The issue of whether the claims made by the plaintiff constitute a

“major” or “minor” dispute cannot be decided based upon a Motion to

Dismiss. Obviously, the Court has to consider the contract that existed

between the plaintiff’s union and the defendant. That contract was not

attached to the defendant’s motion to dismiss, and any review of it would go

beyond the pleadings. Therefore, the Court cannot possibly make a decision

concerning issues under that contract until the Court has reviewed that

contract.

The preemption issue raised by the defendant concerning Count III of

plaintiff’s complaint are better determined by a motion for summary

judgment, to be decided by the Court after a careful review of the contract

and the facts concerning plaintiff’s claims. As indicated above, the analysis

of whether the RLA preempts certain breech of contract claims is a fact-laden

analysis, not capable of being made at the earliest stages of litigation. The

Court must examine the contract, and determine whether plaintiff's claims

are capable of being determined under that contract by a simple

interpretation of its terms. Without the contract, and without a full

examination of plaintiff's claims, the applicability of the RLA cannot and

should not be determined.

Therefore, the Court should deny the defendant motion to dismiss

Count III of plaintiff’s complaint since defendant cannot prove, as it must

prove in asking a Court to dismiss a claim pursuant to Rule 12(b)(6) that “it

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 8 of 14
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appears beyond doubt that the plaintiff can prove no set of facts in support of

his claims which would entitle him to relief.” Conley, supra.

V. PREEMPTION BY THE PHRA

Defendant argues that plaintiff’s common law claims for violation of

contract and unlawful practices in policies should be dismissed on the

grounds that these claims are preempted by the Pennsylvania Human

Relations Act (PHRA).

As stated above, Count IV alleges claims based upon Title VII. Such

claims are not preempted by any state laws.

Defendant cites numerous cases that state that the PHRA preempts

common law tort action claims. In fact, plaintiff cross-filed his claims with

PHRA. PHRA investigated the claims and issued to plaintiff a right to sue

letter, as did the United States Equal Employment Opportunity

Commission.

Count IV of plaintiff’s complaint has nothing to do with common law

tort claims or state-based causes of action for wrongful termination. As

stated-above, Count IV alleges that, under Title VII, defendant has

promulgated facially neutral polices which, in fact, have an adverse impact

upon African-Americans and plaintiff.

Regarding Count III, as indicated above, plaintiff has alleged major

claims based upon violations of the contract that exist between the

defendant and plaintiff’s union. No interpretation of that contract is needed

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 9 of 14
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in order to resolve this dispute but, rather, all parties agree on the meaning

of the contract between plaintiff’s union and the defendant. Defendant’s

violation of that contract is based upon the policies which it has

promulgated, and which adversely the impact upon the plaintiff and other

African Americans.

Therefore, there is no issue concerning the preemption of the PHRA

of state law tort claims.

Defendant has failed to cite one case in which a Court has held that a

plaintiff’s Title VII claims for discrimination based upon the adverse impact

of a company’s facially neutral policies and practices is preempted by state

law. Cases in which a party has been allowed to assert claims under Title

VII regardless of the state law are too numerous to cite.

Concerning the contract claims asserted in Count III, the only issue

is whether they are preempted by RLA. This issue was discussed above

and needs no further elaboration.

VI. CONCLUSION:

Defendant’s partial Motion to Dismiss plaintiff’s claim should be

denied. Plaintiff has voluntarily withdrawn his claims under the Fifth

Amendment and Section 1983.

Defendant's Motion To Partially Dismiss is actually a pre-mature

Motion for Summary Judgment, and should be denied because it alleges

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 10 of 14
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defenses that cannot be determined by simply reviewing the complaint and

the law.

Count III of plaintiff’s complaint alleges claims under the contract

between the plaintiff’s union and the defendant. The contract is not before

the Court. These claims should not be dismissed since they are not

preempted by the RLA since they involve major claims that in no way are

dependent upon an interpretation of the contract between the parties. In

fact, there is no dispute as to the interpretation of that contract that calls

for defendant not to discriminate based upon race.

Count III is not preempted by the PHRA. Defendant has cited

numerous cases that deal with a plaintiff who has asserted common law

tort claims in addition to claims under the PHRA. Defendant has failed to

cite any case in which a Court has held that the PHRA preempts validly

stated contract claims.

Count IV should not be dismissed since defendant has simply

misinterpreted what Count IV states. Count IV is a claim under Title VII

alleging that the facially neutral practices and policies of the defendant are,

in fact, discriminatory and that they have an adverse impact upon African

Americans and the plaintiff.

Count IV is not preempted by the RLA since it has nothing to do with

the contract between the parties.

Count IV is not preempted by the PHRA since it represents a

separate and distinct claim under Title VII and not a common law tort claim.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 11 of 14
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For all of these reasons, plaintiff respectfully requests that this

Honorable Court deny the defendant’s partial motion to dismiss.

Respectfully submitted by,

ARMANDO A. PANDOLA, JR.

Attorney for Plaintiff

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 12 of 14
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V E R I F I C A T I O N

ARMANDO A. PANDOLA, JR., ESQUIRE, states that he is the attorney

for Plaintiff herein, and that the facts set forth in the foregoing pleading are

true and correct to the best of his knowledge, information and belief, and that

this statement is made subject to the penalties of relating to unsworn

falsification to authorities.

Date:______________________ _________________________

ARMANDO A.PANDOLA, JR.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 13 of 14
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ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

CERTIFICATION OF SERVICE

Armando A. Pandola, Jr., Esquire, attorney for plaintiff hereby certifies

that the attorney of record in the attached action has been served with a true

and correct copy of Plaintiff’s Answer to Defendant’s Partial Motion to

Dismiss Plaintiff’s Complaint by first class mail on September 9, 2002 to the

following:

Jennifer M. Nix, Esquire

Morgan Lewis & Bockius, LLP

1701 Market Street

Philadelphia, PA 19103-2921

________________________

ARMANDO A. PANDOLA, JR.

Case 2:02-cv-04451-CG Document 6 Filed 09/12/2002 Page 14 of 14